The Ombudsman's final decision
Summary: Ms X complained about the Council’s decision not to prosecute her neighbour, who had carried out works to a tree protected by a Tree Preservation Order. We did not investigate this complaint further, because we are unlikely to find fault, recommend a remedy or reach any other meaningful outcome.
The complaint
Ms X complained the Council failed to take enforcement action against her neighbour, who damaged a tree on her land that was protected by a Tree Preservation Order (TPO).
Ms X said the Council’s failure to act was a breach of her human rights because she has not had the right to a fair and public hearing.
Ms X said the Council should compensate her for the costs she incurred instructing a lawyer.
The Ombudsman’s role and powers
The Ombudsman investigates complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. We provide a free service, but must use public money carefully. We do not start or may decide not to continue with an investigation if we decide: there is not enough evidence of fault to justify investigating, or any alleged fault has not caused injustice to the person who complained, or any injustice is not significant enough to justify our involvement, or further investigation would not lead to a different outcome, or we cannot achieve the outcome someone wants, or there is another body better placed to consider this complaint.
(Local Government Act 1974, section 24A(6))
How I considered this complaint
I read the complaint and discussed it with Ms X. I read the Council’s response to the complaint and considered documents from its planning files, including the plans and the case officer’s report.
I gave Ms X and the Council an opportunity to comment on a draft of this decision. I considered the comments I received before making a final decision.
What I found
Tree Preservation Orders Councils may impose Tree Preservation Orders (TPO) to trees, groups of trees or woodland to protect them. Powers to issue orders are carried out by council planning authorities. TPOs may control works on trees, such as: Cutting down; Topping; Lopping; Uprooting; and Wilful damage and destruction.
If there is a breach of a TPO, the Council may prosecute the individual responsible for unlawful works. Enforcement action is discretionary and formal action should happen if the Council decides: it would be a proportionate response to the harm caused to the public; and there is a realistic chance of a successful prosecution.
What happened Ms X’s neighbour carried out work to a tree protected by a TPO without seeking the Council’s permission. Ms X reported this to the Council.
The Council decided not to take enforcement action against the neighbour. It said this was because: The tree was not in the position shown in the plan attached to the TPO; An arboriculture expert commissioned by the Council said that, while the tree had been disfigured in the short term, it would not die and there would be regenerative action.
Ms X employed a solicitor who wrote to the Council, challenging its position. The solicitor said: The tree was on Ms X’s land, not the neighbour’s land; What had happened was criminal damage to the tree, and Ms X wanted to appeal against the Council’s decision not to act; Land registry documents could not be relied on to determine ownership; The tree adds economic value to Ms X’s land; and The Council had taken too long to respond to Ms X’s complaint.
My findings
We are not a planning appeal body. Our role is to review the process by which planning decisions are made. We look for evidence of fault causing a significant injustice to the individual complainant.
Before we begin or continue our investigations, we consider two, linked questions, which are: Is it likely there was fault?
Is it likely any fault caused a significant injustice?
If at any point during our involvement with a complaint, we are satisfied the answer to either question is no, we may decide: not to investigate; or to end an investigation we have already started.
Our investigations need to be proportionate. We may consider any fault or injustice to the individual complainant in its wider context, including the significance of any fault we might find and its impact on others, as well as the costs and disruption caused by our investigations.
I did not investigate this complaint further, because: Before it made its decision not to act, the Council considered Ms X’s allegation, its powers to control unlawful work to trees protected by a TPO and what it found during its investigation. This is the process we would expect and so it is unlikely further investigation would result in a finding of fault in the decision making process.
Even if I was to find fault, I would not be able to show the Council was responsible to Ms X for the loss of the tree. The Council’s duty here is to protect public amenity, not the rights and interests of private individuals. If Ms X does own the land and tree, it might be possible for her to seek a remedy in the civil courts directly against the individual she alleges is responsible for her losses.
Ms X would like the Council to pay the costs she incurred by instructing a solicitor. We do not usually recommend compensation for professional fees, where individuals choose to seek advice and representation.
Ms X said her human rights were infringed, as she did not get a right to a fair hearing. Only the courts can determine whether human rights are infringed. We can decide whether an organisation had due regard to an individual’s human rights in their treatment of them. The Council followed the process we would expect in its investigation. The right to a fair hearing would have applied to the neighbour if the Council had decided to take enforcement action. It did not do so. As I understand it, it would have been possible for Ms X to challenge the Council’s decision by way of judicial review. It is therefore unlikely further investigation would result in a finding of fault.
Final decision
I ended my investigation as it was unlikely to result in a finding of fault, a remedy for Ms X or any other meaningful outcome.
Investigator's decision on behalf of the Ombudsman